Stewart and Wayne: Broader DOJ Authority to Prosecute Public Officials is Wrong Priority

Imagine if the Environmental Protection Agency had brought a high-profile criminal enforcement action against John Jobcreator, one of the nation’s best-known real-estate developers. After winning its case and putting John Jobcreator out of business, it was revealed by a court-ordered investigation that the EPA had systematically and deliberately concealed evidence that would have undermined its case.

One could reasonably expect calls from Capitol Hill for heads to roll at the EPA and serious attempts to cut the agency’s enforcement budget. One would not expect to see new legislation to dramatically increase the EPA’s authority to pursue similar criminal enforcements. Yet if one substitutes the Justice Department for the EPA and Ted Stevens for John Jobcreator, it is clear that exact scenario is playing out right now on Capitol Hill.

Last week, a special prosecutor finished a two-year investigation into the DOJ’s handling of the case against the late Sen. Ted Stevens. The federal judge who ordered the investigation had repeatedly reprimanded prosecutors from DOJ’s Public Integrity Section during the trial for withholding evidence in violation of clear Supreme Court precedent.

After the Alaska Republican was convicted, an FBI agent filed an affidavit alleging that prosecutors failed to turn over additional exculpatory evidence. Newly appointed Attorney General Eric Holder took the unusual step of requesting that the Senator’s conviction be set aside.

Although the special prosecutor’s report was not released to the public last week, the brief summary provided by the judge is chilling.

The report concludes that the prosecution of Stevens was “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

It also revealed that the concealment was, at times, “willful and intentional.” In addition, the special prosecutor found evidence of “concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed” without the investigation.

This preview of the special prosecutor’s report should concern all Americans. If government prosecutors are willing to brazenly and systematically withhold evidence against a senior member of the United States Senate, what confidence can ordinary Americans have in their ability to get a fair trial?

Shockingly, rather than ask this and other critically important questions, the House Judiciary Committee appears poised to approve legislation tomorrow giving the Justice Department vastly expanded powers to investigate and prosecute federal, state and local public officials. The bill also extends the statute of limitations for such prosecutions and directs the U.S. Sentencing Commission to increase prison sentences for many existing corruption offenses.

Our organizations, along with The Heritage Foundation, Texas Public Policy Foundation, American Legislative Exchange Council and Washington Legal Foundation are sponsors of the “Criminal Law Checklist for Federal Legislators.” The checklist calls for lawmakers to consider a series of questions before enacting any new criminal law. These questions ask whether another criminal law is needed, and if so, would it give clear notice of the type of conduct that will be punishable and ensure that the law targets only those who intend to commit the crime? Finally, the checklist asks lawmakers to consider what punishment is “appropriate.”

If lawmakers were to apply the checklist to H.R. 2572, this legislation would be roundly rejected.

In the first place, this bill would add “new” federal corruption offenses to the more than two dozen federal corruption laws on the books. It also would overturn two Supreme Court decisions that aim to keep criminal laws such as these from being too vague and overly broad.

As for the directives to the U.S. Sentencing Commission mandating substantially increased prison terms, lawmakers will see that the need for such increases are not supported by any empirical evidence. In fact, backers of the bill appear to overlook the fact that the Sentencing Commission reviewed all public corruption offenses in 2004 and increased penalties — lengthening the average sentences for public officials who accept bribes by more than 50 percent.

In light of the new revelations about the Stevens case and recent, serious analysis by the Sentencing Commission about what is appropriate punishment for public corruption, Congress should pause and take a breath. This bill has serious flaws that must be addressed. Congress should refrain from giving even greater power to the Justice Department unit found to have trampled the constitutional rights of one of this nation’s most senior elected officials, and, instead, should exercise its oversight authority to ensure that all Americans are treated fairly.

Julie Stewart is president of Families Against Mandatory Minimums. Lisa Wayne is president of the National Association of Criminal Defense Lawyers.